Inside Trump’s Immigration Order To Restrict Chinese Students

Reading this interview, one has the impression that this is more virtue signalling to the base rather than addressing legitimate security concerns, like so many of the Miller/Trump immigration policies:

On May 29, 2020, Donald Trump issued a presidential proclamation aimed at restricting the entry of graduate students and researchers from China. It is the latest immigration action to make it more difficult for foreign-born individuals to live, work or study in the United States.

In the 2018-19 academic year, there were 272,470 undergraduate and graduate students from China enrolled at U.S. universities, 84,480 of whom were in a graduate-level science and engineering program, according to the Department of Homeland Security. China is the number one source of international students to the United States.

To better understand the new policy and its implications, I interviewed Jeffrey Gorsky, senior counsel at Berry Appleman & Leiden LLP and former Chief of the Legal Advisory Opinion section of the Visa Office in the U.S. Department of State.

Jeffrey Gorsky: The proclamation bars the entry of or the issuance of visas to Chinese students to the United States who are in “F” or “J” status in graduate-level programs and who are or had been associated with PRC (People’s Republic of China) entities involved with the PRC’s “military-civil fusion strategy.” The proclamation defines that strategy as “actions by or at the behest of the PRC to acquire and divert foreign technologies, specifically critical and emerging technologies, to incorporate into and advance the PRC’s military capabilities.”

The proclamation also calls on the State Department to consider using its visa revocation authority to revoke previously issued visas in this category and directs the State Department and Department of Homeland Security (DHS) in the next 60 days to review possible immigration measures for other immigrant and non-immigrant visa classifications to deal with this issue.

The proclamation, which applies to persons in graduate-level programs, does not indicate whether the restrictions will apply to students seeking to enter the United States to work under post-graduation Optional Practical Training (OPT).

The most significant portion of this proclamation may be the part calling on the State Department to consider revoking visas. The State Department has practically unlimited legal authority to revoke a visa – the law says the Secretary of State may revoke a visa in his discretion at any time. The State Department will often revoke a visa if there is any concern about immigration eligibility, requiring the affected person to reapply so that the case can be fully vetted. The State Department may now follow up with widespread revocation notices, which will not affect people in the U.S. but would bar students outside the U.S. from returning until they receive a new visa.

Anderson: What should a Chinese student inside the United States do if they or their institution receive a notice that a visa has been revoked?

Gorsky: A visa revocation will prevent the student from traveling into the United States but will not have any effect on the student’s legal immigration status in the U.S. When students are admitted into the United States, they are given at the border a legal authorization to remain so long as they properly maintain their student status. Students are normally admitted at a port of entry for “duration of status.”

A visa is a travel document – it allows them to travel and apply to enter the United States, and is only for travel. If an individual’s visa is revoked, then he or she cannot travel back to the United States, but the authorization the individual received when first entering the country is not affected by the visa revocation as long as the person maintains student status. Although in theory a visa revocation can be used as the basis to put someone in removal proceedings, that authority is rarely used because it can be challenged in court.

Anderson: What is the best advice for current Chinese students and researchers who are already in the United States?

Gorsky: As long as the students remain in the U.S. in valid student status they should not be affected by the revocation even if the student receives a revocation notice.

Anderson: What do you think will be the practical impact of this policy on Chinese graduate students who apply for visas?

Gorsky: For students in valid status in the United States this will have little practical impact if they do not leave the country, for the reasons discussed earlier related to duration of status.

For those outside the country, if you are a graduate student from China currently not in the United States, at present (and this is not related to the new proclamation) you cannot apply for a visa now because visa processing has been suspended worldwide due to Covid-19 concerns.

Anderson: Once visa processing resumes, if the presidential proclamation remains in effect, what could a graduate student from China attempting to obtain a new visa to study in a science or engineering program in the United States expect?

Gorsky: The State Department has not issued guidance on how it will implement the new restrictions. It is likely consular officers will deny at the time of the interview those applications they determine meet the criteria cited in the proclamation and put any other questionable but not clearly deniable case into “administrative processing” while the case is sent for interagency clearance.

This will likely result in a significantly higher denial rate as well as more processing delays as the additional cases sent in for clearance clog up the interagency clearance system. Given the strict time frames of academic semesters, even delays in processing could effectively preclude students from beginning (or continuing) an academic program.

Anderson: In June 2018, the State Department started limiting the validity of student visas for Chinese nationals in graduate programs in what the department defined as sensitive subjects to one year, as opposed to the normal five-year validity. How does this new proclamation differ from existing U.S. visa policy?

Gorsky: This will be a much blunter tool than the current policy. There has been a longstanding procedure in place to vet and screen out students who present concerns about the transfer of sensitive technology.

U.S. immigration law contains a provision that renders ineligible for a visa or admission to the United States any alien who a consular or immigration officer knows or has reason to believe seeks to enter the United States to engage solely, principally or incidentally in any activity that violates or evades any law prohibiting the export from the United States of goods, technology or sensitive information. The State Department has an interagency clearance program in place called the “MANTIS” clearance process to determine whether students are involved in programs related to the Technology Alert List (TAL).

The broader language of the proclamation, which applies even to students who had minor and decades-old associations with PRC entities, could affect students who would otherwise be cleared in the MANTIS process and unnecessarily restrict access to the United States of talented students who make important contributions to U.S. academic institutions and America as a whole.

Anderson: What authority did the president use to issue the proclamation?

Gorsky: The president relied on his authority under section 212(f) of the Immigration and Nationality Act (INA), which authorizes him to bar the entry of foreign nationals by proclamation upon a finding that their entry would be detrimental to U.S. interests, and similar authority under INA section 215(a). It is the same authority that he has used for multiple travel bans. This administration’s extensive use of the 212(f) authority, which has existed since 1952 (similar authorities date back to the Alien Enemies Act of 1798), is unprecedented.

Anderson: Do you expect the proclamation to have an impact on U.S. universities and employers?

Gorsky: The impact will be somewhat limited in that it will not affect current students. The worldwide suspension of visa processing remains in effect, and it is not clear whether the State Department will resume processing in time to bring in new students in general. If visa processing is resumed, this will have a significant impact on the entry of new graduate students from China.

Anderson: Do you think by blocking some number of Chinese graduate students this proclamation will protect U.S.-made technology or, as some critics say, be more likely to harm efforts in America to innovate and produce important research?

Gorsky: There is already a longstanding program in place to vet potential students based on concerns over the transfer of sensitive technologies. This proclamation will exclude persons from the United States based on past or minor associations with PRC entities even if the individuals pass the interagency clearance process.

The proclamation will damage the exchange of knowledge and talent. It may inhibit the ability of the PRC to access some technology that may have military implications but the Chinese military will have other sources in other countries. America will lose out on a valuable talent pool and the financial and scientific contributions these students make to U.S. universities and the United States.

Source: Inside Trump’s Immigration Order To Restrict Chinese Students

About Andrew
Andrew blogs and tweets public policy issues, particularly the relationship between the political and bureaucratic levels, citizenship and multiculturalism. His latest book, Policy Arrogance or Innocent Bias, recounts his experience as a senior public servant in this area.

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